SISIR KUMAR MALLIK Vs. RAJKRISHNA BHAR

JUDGEMENT

(1.) The only short question of law we are called upon to answer in this Second Appeal is whether land comprised in homestead or appertaining to buildings and structures owned by the intermediary and retained by him, under Sub -section (1) of Sec. 6 of the West Bengal Estates Acquisition Act would vest in the State for the simple reason that it forms part of a registered lease granted by the intermediary in favour of a lessee since before the date of vesting and subsisting on the date of vesting. In other words, the question is whether the right and interest of an intermediary in respect of such homestead land or lands appertaining to buildings and structures would come to an end by the operation of the Estates Acquisition Act, on the date of vesting, in view of the subsistence of a pre -existing registered lease by the intermediary in favour of a lessee.

(2.) Undisputedly, the properties in dispute, as described in Schedule A of the plaint comprising buildings and structures and lands appertaining thereto, being premises No. 38/1, Barrackpore Trunk Road, within the limits of Burranagar Municipality and Police Station, 24 -Parganas, were allotted exclusively to Taranath Mallik in a partition suit No. 296 of 1935 with his co -sharer Madhusudan Mallik before the Hon'ble Court. As because the said property was recorded erroneously in the name of the said co -sharer Madhusudan Mallick, in the R.S. record of rights, Taranath Mallik brought Title Suit No. 34 of 1961 and the same was corrected accordingly. It was the case of the Plaintiff -Appellants that the disputed property covering the buildings and structures was let out by Taranath Mallick to the Defendant -Respondent No. 1, Rajkrishna Bhar, at a monthly rental of Rs. 150 by a registered deed of lease dated February 6, 1948 for a period of 61 years and since then Taranath Mallick had been realising rent from him. In the revisional settlement the Respondent No. 1 was wrongly recorded as a Korfa tenant under Madhusudan Mallick, the co -sharer of Taranath Mallick. According to the Appellants, this entry in the record of rights was erroneous and he submitted a return in B form, on July 15, 1959, exercising his option to retain the suit properly. Taranath Mallick died on September 13, 1962, leaving a Will in which the Plaintiffs were appointed as the Executors and they brought this suit by serving a notice under Sec. 80, Code of Civil Procedure, the Respondent No. 2, State of West Bengal, began realising rents from the suit property claiming that the said property had vested in the State. The Plaintiffs also claimed for arrears of rent against the Respondent No. 1 and for decree for accounts against the Defendant No. 2.

(3.) The defence of the Respondents, in short, was (hat the Plaintiffs or for the matter of that, their predecessor -in -interest, Taranath Mallick, had no subsisting interest in the disputed property as the same had vested in the State of West Bengal.